Is Latin a Dead Language in Humboldt?

Latin is still used to describe legal doctrines. 

  • "Defacto" means "in fact"
  • "Ex parte" means "by one party"
  • "Fiat" means "let it be done"
  • "De novo" means "anew"

The term "de novo" is commonly used to describe the right to a new trial of an administrative hearing officer's decision if appealed. This is an important right that can effect disability payments, permit and license revocations, and property rights.  Without the right to a traditional "de novo" review of an administrative hearing officer's decision property and civil rights are at risk. An administrative hearing officer is someone the Government pays to determine the rights of its residents. Sometimes these hearing officers are unqualified, bias, or conflicted so California law allows their decisions to be reviewed by judges "de novo" or "anew."

Two Humboldt Superior Court Judges Kelly Neel, and Gregory Elvine-Kreis have determined the term "de novo" means the exact opposite of it's Latin origin. Both judges have held that a "de novo" review of an administrative hearing officer's decision is limited to the record at the administrative hearing meaning the review is not "anew" but is the opposite.  Our judges have decided nothing "anew" is allowed to be presented on appeal to challenge the hearing officer's decision. This is an astonishing holding (postmodernism?)which appears to contravene the findings of every other Judge in the State who has pondered the issue.  Will the Court of appeals agree with our Humboldt Court by turning Latin on it's head and disposing of due process? 

-  “The basic tool for the manipulation of reality is the manipulation of words. If you can control the meaning of words, you can control the people who must use them.” Philip K. Dick

Supreme Court Resurrects Property Rights from the Grave

Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019)

Ms. Knick bought 90-acres of land in 1970 in Pennsylvania.  In 2008, rumors started to circulate a dead body was buried on her land. A relative of the dead body convinced (probably bought) the City Counsel to designate the land as a cemetery which forced Ms. Knick to allow visitors on her land. Ms. Knick sued in State court where her case was dismissed because the City had not filed an enforcement action against her. 

Ms. Knick petitioned the US Supreme Court to overturn a catch-22 for property owners. She claimed the City turning her property into a cemetery was an illegal taking (without just compensation) under the 5th amendment. Prior to this decision property owners were barred from seeking relief in Federal Court until they had sued and appealed all the way to the State Supreme Court. 

The US Supreme Court overturned this rule and now property owners can sue directly in Federal Court when a locality takes property without just compensation. This decision may bring an end to our local bureaucracy. 

Humboldt Planning and Building Department, Director John Ford on bottom right

Eureka Public Transit System

I've been grounded from driving since Mother's day due to a medical condition giving me an opportunity to review Eureka's public transit system.  On average public transit in Eureka is as fast as walking. 

California Proposes Reducing Cannabis Taxes to Fight Illicit Market 

Assembly Bill 286, dubbed the Temporary Cannabis Tax Reduction bill, would temporarily cut state excise taxes for legal marijuana retailers from 15 percent to 11 percent and also suspend cultivation taxes altogether through 2022.  The proposed legislation, which is sponsored by state Treasurer Fiona Ma.  “The whole aim of legalization is to compete with the illicit market and to get people to buy from the regulated establishments,” he said. “You can’t do that if the taxes are so high and onerous that people are driven out of that market.”

This is at odds with the taxing scheme in Humboldt were the black market is estimated to be 1,500% larger than the white market.  Yesterday, the Court refused to dismiss the Measure S lawsuit attorney Eugene Denson and I filed. The lawsuit seeks to return the tax to a crop tax as approved by the voters. The suit challenges the constitutionality of an amendment our county supervisors made to impose the tax whether or not plants are grown. 

Fred Fletcher

January 29, 2019

Human Rights Update

Judge, Haywood S. Gilliam Jr. of the US District Court in Oakland, on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives. 

Saul Loeb/AFP/Getty Images

New Laws in California for 2019

Farm Employee Overtime

In 2016, California became the first state in the U.S. to require employers to pay overtime for farmworkers who work more than eight hours. The first phase of the new rules will begin in January, when agricultural employees will earn overtime after working 9 1/2 hours in a day or 55 hours in a week. Currently, California farmworkers can get overtime after working 60 hours in a week or 10 hours in a day.  The change only applies to businesses that employ at least 26 people. The rules do not apply to smaller agricultural employers until 2022. Discloser, our office consults with agricultural employers on compliance matters and we represent employees on wage and labor claims. Aside from wage and hour claims, sexual harassment and discrimination are constant concerns on the farm. 

Street Vendor Permits

A law going into effect in January will allow local governments to design permit programs for vendors and limits when they can be criminally prosecuted. It pertains to anyone selling food or other merchandise from a pushcart, stand or “non-motorized conveyance.” I anticipate the City of Eureka will embrace this new law and its economic benefits. I predict the County will ignore this law until the County is forced to follow it by a judge.  

Home Kitchen Businesses

A new law encourages Counties (like Humboldt) to permit home kitchens for the purpose of selling food products. California Assembly member Eduardo Garcia, who authored the bill, says that homemade food sales are a vital part of self-reliant communities. “Legitimizing these home businesses will offer a means of economic empowerment and pathways for many to achieve the ‘American dream,’” Garcia said when the bill was signed. Humboldt historically resists new opportunities which provide residents access to residual income. Perhaps after the County Supervisors election in 2020 progress will be made on this front.  

Fred Fletcher

January 17, 2019

The Measure S Lawsuit

Measure S is the cannabis cultivation tax the voters passed. We are challenging the County Supervisor's decision to amend Measure S as passed by the voters. The Supervisors amended the tax to apply to the property owner, not the farmer, and regardless of whether any crop is grown.  

Yesterday, we filed our response to the County's demurrer to the Measure S lawsuit. (Set to be heard January 28, 2019.) The County hired a large Sacramento Firm (founded the year I was born) to defend the lawsuit. They argue it's impossible to tax farmers for the actual crop grown because the County can't verify how much was grown. We informed the Court, governments since the beginning of governments have taxed farmers for crops actually grown, and we cited the Book of Genesis as our evidence.  

The amendments by the Supervisors have been misreported. The Supervisors amended Measure S to tax the permitted area regardless of the amount of crop grown.  As such, the supervisors have amended the tax to be assessed against fallow land, without regard to crop grown. We provided the Court authority that Measure S as amended is a property tax and is unconstitutional. We ask the Court to return Measure S to its original state which acted as an excise tax on legal crop actually grown. 

We will update this one. 

Fred Fletcher

January 15, 2019


County Supervisor's Can't Silence Critics, including Humboldt's Supervisors. 

In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her “Chair Phyllis J. Randall” facebook page.

Last election my office received a few complaints from citizens who were censored for making comments critical of politicians, on the left and right (somehow our local politics are becoming politically polarized). Now these citizens may have recourse. This First Amendment decision could impact local elections nationwide by allowing the public to be heard.    

Fred Fletcher

January 8, 2019

Update on Nation v Trump filed in the 9th Circuit

This lawsuit challenges HUD's rule which forces subsidized apartments to evict medical cannabis users. Plaintiff was evicted from her HUD apartment on July 10, 2018 when a maintenance man discovered some medical cannabis in her bedroom. She remains homeless and is not alone.

The lawsuit not only challenges HUD's rule but relies upon Murphy v NCAA (decided May 2018) to challenge the constitutionality of the Controlled Substance Act itself relative to medical marijuana in the State of California. The Supreme Court in Murphy v NCAA resurrected from near death the anti-commandeering doctrine, which in laymen's terms means the Congress cannot make orders directly to the States. 

We are optimistic this lawsuit will prevail. If the District Court issues an order in our favor appealing the decision would pose a political pitfall for the Trump administration. 

I will update this one.

January 3, 2019

Fred Fletcher 

Update on Volkswagen Diesel Fraud Case

We filed an action in Butte County on May 17, 2018 with the intent of having a jury decide punitive damages. We would be the first party to bring the defeat device case to jury trial.  Peer reviewed studies proved thousands of people with lung diseases died from the fraud.  

 

Medicinal & Adult-Use Cannabis Regulation & Safety Act Regulations Overview

Posted by Lacy Fletcher on Saturday, November 18, 2017 Under: Cannabis Regulation
All Bureau licenses

Temporary license – Allows for Operations while Annual license Application is Pending

A temporary license allows a business to engage in commercial cannabis activity for a period of 120 days.

The Bureau can only issue a temporary license if the applicant has a valid license, permit, or other authorization issued by the local jurisdiction in which the applicant is operating. Humboldt County will be offering temporary permits for farms who registered activity prior to January 31, 2016. 

Annual licenses

All commercial cannabis activity shall be conducted between licensees.

There is no specific number limit to the licenses that may be held by an applicant. There is no restriction on the types of cannabis licenses a person can hold, except a person who holds a testing laboratory license is prohibited from licensure for any other commercial activity.

An annual license issued by the Bureau is valid for 12 months from the date of issuance and may be renewed annually.

Local compliance Verification

If the applicant provides a local license, permit, or other authorization, the Bureau will contact the local jurisdiction to verify the information and will allow at least 10 days for the jurisdiction to respond before issuing the license, unless a response is received from the local jurisdiction sooner.

If an applicant for an annual license does not provide a local license, permit, or other authorization,
the Bureau will contact the local jurisdiction to verify that issuing the license would not violate a local ordinance or regulation. After 60 days, if there is no acknowledgement by the local jurisdiction, the Bureau shall
presume the applicant is in compliance and may issue a license.

Additional Requirements

By license Type

Distributor license – Arrange for testing, check for appropriate packaging and labeling, collect taxes, transport cannabis and cannabis products, and may act as a wholesaler. All transportation shall be conducted by distributor licensees and their direct employees.

• Cannabis and cannabis products must pass through a distributor prior to being sold to customers at a retail
establishment.

• Distributors must arrange for the laboratory testing and quality assurance for cannabis and cannabis products.

• Distributors may package and label cannabis (dried flower) but may not package cannabis products pursuant to
the distributor license. distributor Transport-Only license – A distributor can choose to be a Transport
only Distributor, which transports only its own cannabis and cannabis products, or transports for other licensees, but does not perform any of the other functions of a distributor. Transportation to retail licensees is prohibited by this type of license, unless the licensees are transporting immature plants and seeds from a nursery to a retailer. 

License Type designation

Licensees must hold an A-license to engage in adult use commercial cannabis activity and an M-license to engage in medicinal commercial cannabis activity. The exception is testing laboratories, which may test
cannabis goods for both license types.

Ownership

An owner is a person who: holds at least 20 percent aggregate ownership interest in a commercial cannabis business; is a chief executive officer or member of the board of directors of a non-profit; or will be participating in the direction, control, or management of the entity applying for licensure.

owners must submit fingerprints, information regarding any criminal convictions, and disclose whether they have a financial interest in any other commercial cannabis business licensed under MAUCRSA.

Priority licensing

Priority application review will be provided for annual licenses only.

To be eligible for priority licensing, an applicant must be able to demonstrate that the business was in operation and in good standing with the local jurisdiction by September 1, 2016.

Premises requirements

Applicants must identify the designated structure(s) and real property under the control of the applicant or licensee where commercial cannabis activity will take place.

each license must have a separate licensed premises, unless all of the following requirements are met:
A licensee holds both an M-license and A-license for the identical type of commercial cannabis activity;

  • The licensee holding both licenses is identical in name, business formation, and ownership;
  • The licensee only conducts one type of commercial cannabis activity on the premises;
  • All cannabis and cannabis products are clearly marked with an “M” or “A”; and
  • records are kept separately for each license and clearly indicate the records are related to the M-license or A-license.
Security 

Security measures are required at licensed premises. Measures include: employee badges, designated limited-access areas, and security personnel.

•       24-hour video surveillance for areas containing cannabis and cannabis products as well as all entryways and exits. retailers must also have video surveillance in point-of-sale areas and security personnel.
Alarm systems, commercial grade locks, and secure storage of cannabis and cannabis products.

All employees of the licensee must be at least 21 years old.

Cannabis waste

Cannabis waste must be contained in a secured waste receptacle
or secured area on the licensed premises.

licensees may not sell cannabis waste and must comply with all applicable waste management laws.
labor Peace Agreement.

Applicants for a license with more than 20 employees must either:

(1) attest that they have entered into a labor peace agreement and that they will abide by the terms of the agreement, and provide a copy of the agreement to the Bureau, or

(2) provide a notarized statement indicating the applicant will enter into and abide by the terms of the labor peace agreement.

Additional Requirements by License Type 

Distributor license – Arrange for testing, check for appropriate packaging and labeling, collect taxes, transport cannabis and cannabis products, and may act as a wholesaler. All transportation shall be conducted by distributor licensees and their direct employees.

Cannabis and cannabis products must pass through a distributor prior to being sold to customers at a retail establishment.

Distributors must arrange for the laboratory testing and quality assurance for cannabis and cannabis products.

Distributors may package and label cannabis (dried flower) but may not package cannabis products pursuant to the distributor license.

Distributor Transport-Only license – A distributor can choose to be a Transport only Distributor, which transports only its own cannabis and cannabis products, or transports for other licensees, but does not perform any of the other functions of a distributor. Transportation to retail licensees is prohibited by this type of license, unless the licensees are transporting immature plants and seeds from a nursery to a retailer.

Additional Transport requirements for All distributors

Cannabis goods may only be transported in a vehicle or trailer, must not be visible from outside of the vehicle, and must be kept in a locked box, container, or cage that is secured to the commercial vehicle or trailer.

Transport vehicles must be equipped with alarm systems and remain secure at all times.

Packages or containers holding cannabis goods may not be tampered with, or opened during transport.

no vehicle or trailer containing cannabis goods shall be left unattended in a residential area or parked overnight in a residential area.

All transports must have a shipping manifest with specifc information about the cannabis and cannabis products being transported. The shipping manifest must identify the licensee shipping, the licensee transporting, and the licensee receiving the shipment.

Retailer license – sell cannabis and cannabis products to customers, often referred to as dispensaries.

retailers are not allowed to package or label cannabis or cannabis products on the premises. All cannabis or cannabis products sold at a retailer must be packaged and labeled before arriving at the retail premises, except during the transition period.

retailers may only sell and deliver cannabis goods between the hours of 6 a.m. and 10 p.m.

Before leaving the retail premises, cannabis purchases must be placed in an opaque exit package.

Deliveries must be made in person by a direct employee of the licensee to a physical address within the state of California.

Delivery vehicles may not contain more than $3,000 of cannabis product at any time. The retailer must be able to immediately locate all delivery vehicles. Microbusinesses license – Microbusiness licensees must engage in at least three of the following commercial cannabis activities: cultivation (less than 10,000 square feet), manufacturing (level 1, Type 6), distribution, and retail.

A holder of a microbusiness license may only engage in the commercial cannabis activity requested in the license application and approved by the Bureau. If a microbusiness licensee wants to engage in additional commercial cannabis activity after the license is issued, the licensee shall submit an application to the Bureau identifying the requested changes and providing all information required for an application for the commercial cannabis activity the licensee wants to conduct.

Licensees will be required to comply with the rules and regulations applicable to the commercial cannabis activities the microbusiness is conducting.

Testing laboratory license – Test cannabis and cannabis products.

Provisional Testing laboratory license

Testing laboratories that meet all other requirements, but are awaiting Iso (the joint technical committee
of the International organization for standardization and the International electrotechnical Commission) 17025 accreditation may obtain a provisional license.

Provisional licenses expire 12 months after issuance.

The Bureau may renew the provisional license for an additional 12 months if the laboratory’s Iso 17025 accreditation application is still pending.

Sampling

laboratory personnel will take samples from harvest batches and cannabis product batches to be tested. Harvest batches may not exceed 50 pounds. samples collected from batches weighing more than 50 pounds will be deemed invalid.

samplers must follow requirements pertaining to minimum sample sizes, minimum sample increments, transportation and storage of samples, and documentation of all sampling activity.

samples received by a laboratory that do not adhere to the requirements will be rejected.

Tests Performed

Testing laboratories will be required to perform testing on cannabis goods to measure the following:
  • Cannabinoids;
  • foreign material;
  • Heavy metals;
  • Microbial impurities;
  • Mycotoxins;
  • Moisture content and water activity;
  • residual pesticides;
  • residual solvents and processing chemicals; and
  • Terpenoids.

edible cannabis products that contain more than one serving per unit will be tested for homogeneity to ensure consistent concentrations of tetrahydrocannabinol (THC) or cannabidiol (CBD).

Certificate of Analysis

After testing is completed, the laboratory will generate a certificate of analysis that contains the results of the testing and whether the tested batch passed or failed.

Batches that pass testing may be sold to customers via retailers.

Harvest batches or cannabis product batches that fail testing may be additionally processed for remediation, with the exception of edibles. A batch may only be remediated twice. If the batch fails after a second remediation attempt and second retesting, the entire batch shall be destroyed.

Quality Assurance and Quality control

Testing laboratories are required to develop and implement a quality assurance program that is suffcient to ensure the reliability and validity of the analytical data produced by the laboratory.

Phase-in of required Types of Testing

The required tests for cannabis will be phased in throughout 2018.

Cannabis harvested on or after January 1, 2018, and cannabis products manufactured on or after January 1, 2018, will be tested for potency, contaminants with a high public health risk, and contaminants that the industry is largely already testing for.

Cannabis harvested on or after July 1, 2018, and cannabis products manufactured on or after July 1, 2018, will be tested for moderate relative health risks compared to the group above and contaminants that are currently largely not tested for.

Cannabis harvested on or after December 31, 2018, and cannabis products manufactured on or after December 31, 2018, minor relative health risks compared to the group above and contaminants that are seldom or not tested for.

Transition Period

To support a smooth transition of businesses into a newly regulated market, beginning January 1, 2018 and before July 1, 2018, licensees may do the following:

Conduct business with other licensees irrespective of the M or A designation on their licenses.

Transport cannabis goods that do not meet the labeling requirements (prescribed by MAUCRSA  or the
California Department of Public Health) if a sticker with the appropriate warning statement is affixed.

sell cannabis goods held in inventory that are not in child-resistant packaging if they are placed into child-resistant packaging by the retailer at the time
of sale.

sell cannabis products that do not meet the THC limits per package established by the state Department of Public Health.

sell and transport cannabis goods that have not undergone laboratory testing if a label stating that they have not been tested is affixed to each package containing the goods prior to transport by a distributor or prior to sale if held by a retailer.

Individually package and sell dried flower held in inventory by a retailer at the time of licensure.

Cannabis products held in inventory by a retailer that do not meet the requirements set by the state Department of Public Health for ingredients or appearance may be sold by a retailer.

Beginning January 1, 2018, licensees shall not transport or sell any edible cannabis product that exceeds
10 milligrams per serving. Adult-use products may not exceed 100 milligrams per package; however, medicinal cannabis products may exceed 100 milligrams per package.

Enforcement

Right of Access

licensees shall provide the Bureau’s investigators, compliance monitors, agents, or employees full access to enter licensed premises; and inspect cannabis or cannabis products in the licensee’s possession.

Review and copy any materials, books, or records in the licensee’s possession.

failure to cooperate and participate in the Bureau’s investigation may result in a licensing violation subject to discipline.

Prior notice of investigation, inspection, or audit is not required.

Notice to comply

The Bureau may issue a written notice to comply to a licensee for minor violations of MAUCRSA or its implementing regulations, observed during an inspection.

The notice to comply will describe the nature and facts of the violation, including a reference to the statute or regulation violated, and may indicate the manner in which the licensee must correct the violation to achieve compliance.

Within 15 calendar days, the licensee may sign and return the notice to comply, declaring under penalty of perjury that the violation was corrected and describing how compliance was achieved. failure to do so may result in a disciplinary action.

Minor decoys

Peace officers may use a person under 21 years of age to attempt to purchase cannabis goods to ensure that licensees and their employees are not selling cannabis goods to minors.

Disciplinary Actions

The Bureau may take disciplinary action against any license by way of revocation, suspension, fine, restrictions upon any licensee, or any combination thereof.

The assessed penalty shall take into consideration: the nature and severity of the violation; evidence that the
violation was willful; history of violations of the same nature; the extent to which the person or entity has cooperated with the Bureau; the extent to which the person or entity has mitigated or attempted to mitigate any damage or injury caused by the violation; and the extent to which the conduct is a public nuisance or danger to public safety.

Any Bureau accusation recommending disciplinary action will be served on the licensee and a hearing will be conducted to determine if cause exists to take action against the licensee.

An accusation may be terminated by written stipulation at any time prior to the conclusion of the hearing on the accusation.

Citations and notices to comply

The Bureau may issue citations containing orders of abatement and fnes to a licensee or unlicensed person in writing.

The Bureau may issue a notice to comply to a licensee for violations of the act or regulations observed during an inspection. The licensee may within 15 calendar days return the notice indicating the violation was corrected and how compliance was achieved.

In : Cannabis Regulation 


Tags: priority licensing  good standing  cannabis regulation  safety act  bureau  complaince 

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